QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| IN THE MATTER OF WILLIAM BRIGGS PRICE
|- and -
|IN THE MATTER OF THE CJA 1988 and DTA 1994
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Mark Sutherland Williams (instructed by the RCPO) for the RCPO
Barry Stancombe (instructed by Tarlo Lyons) for the Receiver
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MR JUSTICE WILKIE :
"The Receiver shall release to the defendant from (an identified account) or such other source as is agreed between the defendant and the Receiver further money on legal expenses actually, reasonably and properly incurred in these proceedings and the criminal proceedings to which these proceedings are ancillary:
before any monies are released for this purpose the defendant shall notify the Receiver of the following matters:
a. the general nature of the costs incurred
b. the time spent and by whom (whether partner, assistant solicitor or otherwise (in incurring the said costs)
c. the hourly rate applicable to the costs incurred and
in the event that the Receiver considers the claim to be in respect of costs that have not actually, reasonably or properly been incurred then the Receiver shall notify the defendant of the same and shall summarise his reasons for so considering in writing. The Receiver may thereafter at any time apply for the defendant's costs to be assessed and the whole claim for costs will then be subject to assessment on an indemnity basis in accordance with CPR part 48 but without the provisions of 48.8(2)(a)(b) applying."
"But an exception to a restraint order must not make provision for any legal expenses which –
(a) relate to an offence which falls within sub-section (5)…."
By reason of this provision a clause such as clause 14 could no longer be included in a restraint order made pursuant to that statute. By legislating in those terms Parliament made a clear statement of change of policy and the facts of this case provide disturbing evidence as to why that change of policy was thought desirable. This application, however, is made under the old legislation and I must apply that legislation subject to guidance provided by cases on those provisions and on analogous arrangements.
"[Miss Gathercole]…hereby undertakes to the Court and to HM Customs and Excise that in the event of (1) her costs being assessed as provided by paragraph 14 therein and (2) any sum being disallowed on such an assessment, she will within 21 days of assessment pay to the defendant a sum equal to the sums allowed."
"If a defendant against whom a restraint order has been made wishes to vary the order in order to enable him to use the funds or assets which are the subject of the order, which I will call the restrained assets, in order to pay for his defence it is for him to persuade the Court that it would be just for the Court to make the variation sought. I would call that the burden of persuasion. For example, if it were clear that the defendant has assets which were not restrained assets, the Court would not vary the order because it would not be just to do so consistently with the underlying purpose of the restraint order."
and at paragraph 43 he said:
"…on an application to vary a restraint order in a case of this kind, where the order relates to all the defendant's assets the position in principle is that it is for the defendant's to satisfy the Court that it would be just to permit him to use funds which are identified as being caught by the order. If the Court concludes that there is every prospect of the defendant being able to call on assets which are not specifically identified in the order, I do not think that the Court is bound to vary the Order in the terms sought."
Thus the RCPO argues that, in the present case, although the restraint order relates to all the defendant's assets it is for the defendant to satisfy the Court that it would be just to permit him to use those funds caught by the order for the purposes of pursuing his appeal against the confiscation order. In making this assessment the RCPO invites me to conclude that the availability of legal services commission funding for the appeal is analogous to the defendant being able to call on assets not specifically identified in the order, or assets which others will provide for him, and that in those circumstances it would not be just to direct the Receiver to release funds as it would not be expenditure reasonably incurred given the availability of legal funding.
"It appears to me that even if X cannot use restrained funds to pay for his defence there will be no infringement of his rights to a fair trial under Article 6 because he is entitled to public funding for the reasons I gave earlier. However the SFO does not take its stand on that point. It recognises, to my mind correctly, that where a defendant can show that he has no funds other than the restrained funds it will ordinarily be just to permit him to use the restrained funds in order to pay for the reasonable costs of his defence."
The difficulty for X in that case was that the Court of Appeal was not satisfied that the restrained funds constituted the entirety of X's assets and on that basis it decided that it was not just to order the variation in the terms of the restraint order which was sought. However, it is clear from what the Master of the Rolls said in paragraph 55 that it was not considered by the Court of Appeal that the availability of public legal funding did constitute an alternative source of funding which would prevent it being just to permit the restrained funds to be released for the purpose of paying for legal representation in connection with the criminal proceedings in question. Thus, far from undermining the approach taken by the Court of Appeal in Norris, in my judgment the statement by the Master of the Rolls in paragraph 55 of the SFO and X is consistent with the approach taken in Norris.